Malhotra v. Henhoeffer, 2018 ONSC 6472

COURT FILE NO.: FS-14-396173

DATE: 20181030

ONTARIO

SUPERIOR COURT OF JUSTICE

FAMILY COURT

BETWEEN:

A.M.

Applicant

– and –

C.H.

Respondent

Brian Ludmer, for the Applicant

Theodore Nemetz, for the Respondent

Suzanne Stern, for the Office of the Children’s Lawyer

HEARD: September 11-15, November 20-21, 2017, January 25, June 20-21, July 12, 2018

REASONS FOR JUDGMENT

NICHOLSON J.

BACKGROUND

[1] This is a sad case about a mother successfully alienating three children from their father.

[2] The parties were married on […], 1998, separated June 28, 2014, and divorced April 24, 2017.

[3] The three children of the marriage are V.R.H.M. born […], 1998 (hereinafter “V.”) (18 years old), N.L.H.M. born […], 2000 (hereinafter “N.”) (17 years old), B.P.H.M. born […], 2004 (hereinafter “B.”) (12 years old). Only B. remains as the subject of this Application.

[4] In the summer of 2014, the Respondent Mother unilaterally (without notice to or consent of the Applicant Father) changed the children's residence from Toronto to Guelph to be closer to her parents’ home.

[5] The Applicant Father obtained an order from Harvison-Young J., as she then was, following a contested motion that the children be returned to Toronto and to their previous schools. The Respondent Mother begrudgingly moved with the children back to Toronto September 1, 2014.

[6] At that time Harvison-Young J., as she then was, ordered that the Applicant Father’s access to the children was to be each Sunday from 9:00 a.m. to 9:00 p.m. and Wednesday evenings.

[7] On September 14, 2016, the parties entered into a final order which resolved the issues of child support, special and extraordinary expenses, RESP, spousal support, financial disclosure, life insurance, the Matrimonial Home, equalization and cost with respect to the financial issues in this proceeding.

[8] The children have been residing with the Respondent Mother since the date of separation when she moved out of the Matrimonial Home with the children.

[9] By October 2016, the Applicant Father’s Sunday access visit was reduced to approximately 45-60 minutes where the children would have a small breakfast with him at Tim Hortons.

[10] By November 12, 2016, the Sunday visit was switched to Saturday at the request of the children through the Office of the Children’s Lawyer (the “OCL”), however, the duration and format remained the same, with the Applicant Father driving the children to and from their access visits.

[11] On November 28, 2016, at the OCL disclosure meeting, the parties entered into a Consent which provided the Applicant Father access to N. and B. on November 30, 2016 for dinner and six (6) additional non-consecutive days from December 10, 2016 to February 18, 2017 for three (3) hours each visit, alternating Saturdays.

[12] The Consent specified that in the event that there is no further agreement or consent order arising from the meeting scheduled for February 21, 2017, the access schedule shall revert back to the schedule set out in the July 31, 2014 order of Harvison-Young J., as she then was. The Consent also stated that access would take place at the former Matrimonial Home (where the Applicant Father continues to reside to date).

[13] The Consent did not prohibit the Applicant Father from driving the children in his vehicle.

[14] Since the parties did not formalize any other agreement since November 2016, the terms of access under the order of Harvison-Young J., as she then was, dated July 31, 2014, was to remain effective (Sunday access 9:00 a.m. – 9:00 p.m. and Wednesday evenings). However, the visits remain as very brief weekly contacts.

[15] The OCL was appointed to represent the three M[…] children in July 2014. The older children, V. and N., are now 19 and 18 years old, and are no longer the subject of this dispute. The issues for trial primarily center around B.’s contact with his father. B. will be 14 on November 24, 2018. The OCL describes B. as bright, articulate and very likeable.

[16] It is not contested that access never progressed beyond day visits. B. has consistently stated that he does not enjoy the visits, does not want them to continue, and that he has refused to engage with his father in any meaningful way during visits. B. has expressed that he is unwilling to participate in reconciliation therapy. B. has also expressed that he does not feel safe driving with the Applicant Father or going to the Matrimonial Home.

[17] The children and parents participated in a reintegration therapy process with Marcie Goldhar. At Ms. Goldhar’s suggestion, the children attended at an individual session with Carol Jane Parker, in the hopes that this would move the reintegration process forward. The Applicant Father obtained extensive therapeutic support from his individual therapists, Greg Babcock and Joanna Seidel, who also participated in a joint session with Ms. Goldhar and the children. It is not contested that none of the attempts of reconciliation therapy have been successful.

[18] Several variations of the access schedule have been tried to see if a different format might improve the children’s experience of access and their willingness to participate. The Applicant Father has exercised long, short, frequent, and less frequent visits with the children, but there has been no perceptible shift in B.’s position.

[19] The OCL confirms that B. continues to experience the access visits as very negative and uncomfortable occasions. The visits have done little to advance B.’s relationship with the Applicant Father. The oldest child, V., has stopped attending visits. N. continues to attend, but is clear that she only does so because she does not want B. to have to attend visits alone.

[20] On July 31, 2014, the parties obtained an order that all significant decisions (i.e. education, and medical) are to be made by both parents, absent a court order or agreement stipulating otherwise.

[21] The following witnesses testified at the eleven-day trial. Testifying for the Applicant Father:

1. Carol-Jane Parker, Registered Psychotherapist

2. Marcie Goldhar, M.S.W.

3. Greg Babcock, M.S.W.

4. Joanna Seidel, M.S.W., R.S.W.

5. Aram Lee

6. David Redinger

7. Diamond Pirbhai

8. Lidia Yabar

9. Merle-Gobin-Valadez

10. Nicholas Thadney

11. Trent Bemis

12. The Applicant Father

[22] The only witness, apart from the Respondent Mother, called to give evidence on her behalf was her oldest son, V.. For the OCL, Marcie Urbas, clinical investigator testified.

APPLICANT FATHER’S POSITION

[23] The Applicant Father maintains that he has, through his witnesses [which included two participant expert therapists and two family therapist experts, as well as seven friends and colleagues], demonstrated that he is a soft-spoken, intelligent, emotive and resilient father. He says that the trial evidence substantiates the pervasive, false and malicious accusations of the Respondent Mother and programming/manipulation of the children that has led to the loss of the relationship with the eldest, V., and only a tenuous relationship with the middle child, N.. The Applicant Father believes that it is still possible to not only protect and enhance his relationship with B., the youngest child, but also create the potential for fulsome reconciliation with the other two children.

[24] The Applicant Father contends that a competent and committed parent is presumed under the law able to make a substantial contribution to the children's upbringing and therefore maximum contact will be in the children's best interests. In this regard, the Applicant Father claims he was a credible, engaging and forthright witness whose testimony was not shaken whatsoever in cross-examination. He says his expert and lay witnesses support his position in the case.

[25] Conversely, argues the Applicant Father, the Respondent Mother, having only testified herself, and whose only collateral witness was the parties’ oldest child, V., called to testify against his own father, was completely non-credible, evasive and forgetful when it did not suit her and yet clearly filled with hatred and lack of support for the children's relationship with their father. Other objectively non-supportable actions of the Respondent Mother included the original unilateral move of the children to Guelph (while “imprisoning” the Applicant Father in his room under threat) and the Motion to terminate access (which each of the OCL and Ms. Goldhar said was a rare and questionable step) – each of which were rejected by the courts with costs orders against the Respondent Mother.

[26] The Applicant Father testified that in the years prior to separation, starting in 2010, the Respondent Mother began criticizing the Applicant Father in front of the children for not making enough money. In front of the children she also said he could not wash dishes or fold laundry properly. The situation worsened in 2012, when the maternal grandmother started to spend two to four days per week at the family home. She joined in the criticism of the Applicant Father’s inadequacies in providing for the family or helping with household duties in front of the children. The incessant nattering often ended with the Applicant Father and Respondent Mother engaging in yelling and screaming at each other. The Applicant Father testified that he would often end these arguments by leaving the matrimonial home. When he returned, the Respondent Mother had locked the door and he had to plead for 15 minutes with the children to let him in. This was a humiliating experience for him.

[27] Starting in 2012, the Respondent Mother prohibited the Applicant Father from driving the children to school. The Respondent Mother and children would often visit the Respondent Mother’s family farm for stretches of time without the Applicant Father. The Respondent Mother and the children began to impose rules on the Applicant Father in the home. He was not permitted to eat with them at the table. He was not permitted to sit in the family room with the children as they watched television. The children told him to leave and the Respondent Mother did not intervene. He was not permitted to drive the children to their doctor’s appointments. He was not permitted to wish the children goodnight. He was not permitted to enter the youngest child, B.’s, room.

[28] The Respondent Mother, according to the Applicant Father’s evidence, told him in these years prior to the separation that the children did not like him and did not need him.

[29] The Applicant Father contends that the Respondent Mother was perpetually in breach of the original access order of Harvison-Young J., as she then was, dated July 31, 2014, and continued to poison the children’s minds about their father in breach of that order, including in the presence of the OCL at observation meetings. The Respondent Mother undermined the November/December 2016 interim without prejudice order by not correcting the children’s behaviour concerning driving and visits to their father's home and the children dictating that visits take place at the library. Thereafter, the Respondent Mother refused to return to the original order, despite repeated requests from the Applicant Father, even though a February 2017 telephonic meeting amongst counsel and the April 12, 2017 Settlement Conference amongst parties and counsel, did not produce concurrence. Under s. 3 of the December 20, 2016 order of Glustein J., the original schedule was meant to be reinstituted.

[30] Adverse inferences are requested by the Applicant Father against the Respondent Mother for not calling any other witnesses who might corroborate her false narrative about the family dysfunction. That she had to resort to the parties’ eldest son as her only collateral witness, who in turn was completely non-credible, betrays the weakness in her case. Ms. Goldhar testified about the harm in calling a child to testify against the other parent.

[31] The Applicant Father argued the only credible evidence of any “abuse” by him consists of a single incident of one spank in 2013, which was fully investigated by the police and the Children’s Aid Society (the “CAS”), and no action was taken or fault found. He argues that the grossly distorted and completely un-credible account of that incident from the Respondent Mother, who was upstairs at the time, calls into question her entire case. Similar absurd assertions include the Applicant Father being an extreme racist and having beaten all the children almost daily from the age of one and whipping them with a belt. The vast inconsistencies in what was reported to third parties during the course of the relationship and what was invented afterward, as well as the extreme and highly unlikely assertions, once again call for findings of lack of credibility on the part of the Respondent Mother. The Respondent Mother called no evidence of such widespread abuse from any third parties, being school, police, pediatricians, CAS, neighbours, family members or friends.

[32] The Applicant Father argues that the Respondent Mother’s testimony was not only not corroborated, but included multiple false allegations nowhere else reported by her and nowhere else reported even by the children. There is ample evidence of the Respondent Mother speaking negatively to the children about their father, including at the very sessions with the OCL and advising the children that they can make their own decisions and dictate terms of access.

[33] With respect to so-called “emotional abuse”, the Applicant Father contends the only reliable third-party evidence (neighbours and colleagues) substantiates that the parties simply had arguments, even if frequent and sometimes heated, and in some cases the Respondent Mother was the aggressor and louder of the two.

[34] Even minor assertions (such as one mouse being found in an unattached garage shared with the neighbour) got grossly distorted and twisted into allegations of rampant “ants and rats” as an excuse for the Respondent Mother’s lack of compliance with court orders concerning the children attending for visits at the Applicant Father’s home.

[35] The Applicant Father submits that it was the Respondent Mother’s agenda throughout that the children's relationship with their father be terminated. She so much as admitted this to Marcie Goldhar and to the courts in her trial testimony and in pre-trial questioning. The Respondent Mother’s actions, and lack of action relating to supporting the children's relationship with their father, and participation in wiping him out of both the eldest and middle children's lives, are further objective evidence of the primary causal factor of the family dysfunction.

[36] The two family therapist experts testified of the Applicant Father’s absolute commitment to the process, his having followed every suggestion and taken every required step, including sincere apologies for what he has taken ownership of. Conversely, it is clear that the Respondent Mother and, under her direction, the children, were unengaged, hurtful, disrespectful and not participating in good faith and in access or any attempt at reconciliation.

[37] The Applicant Father argues that his commitment to his children has survived rampant noncompliance with court orders, great disrespect, rude, obnoxious and hurtful behaviour, severe marginalization, absurdities like being forced to spend his time with the children in libraries where they would not even interact, and the more recent refusal of the children to drive in a car with him, all unjustified. By not walking away, he believes he is demonstrating to the children his unconditional love for them.

RESPONDENT MOTHER’S POSITION

[38] The evidence of the Respondent Mother is that she was in a marriage that was both physically and emotionally abusive from its very early stages and it took many years and the support of counselors for her to leave the marriage. There had been two prior separations and the parties had been sleeping apart. She says that a permanent separation should not have been a surprise to the Applicant Father.

[39] In June 2014, the Respondent Mother left the marriage without notice to the Applicant Father. She provided the Applicant Father with a letter from a lawyer informing the Applicant Father that he was free to exercise access to the children, an access schedule very similar to what he would agree to later. The Respondent Mother disputed the evidence that the Applicant Father was “held hostage” in his room while the belongings of the Respondent Mother and children were packed up by her brother.

[40] The Applicant Father acknowledges that he did not exercise access, or even speak to the children, at the beginning following separation but only began to see the children after he started proceedings and obtained an order of this Court for access.

[41] The Respondent Mother suggests that in this case the Court must consider the violence inflicted on the mother and the children, particularly the youngest child. This leads to the weight to be given to the evidence of Marcie Urbas, who was the social worker assisting and the voice of the child.

[42] When asked if he ever called the oldest child, V., a “donkey”, the Applicant Father’s response was initially “No.” and later he said he called him this name seven times.

[43] The evidence of Ms. Urbas was that V. told her of being called this name regularly and the Respondent Mother confirmed that this was a constant during the cohabitation.

[44] V. testified that he was routinely called a "donkey" which was directed at his having a learning disability.

[45] The Respondent Mother suggests that this proves that the Applicant Father views himself as intellectually and morally superior to others and has little regard for those who have less education than he.

[46] V. described his father as physically abusive, particularly towards B..

[47] V. also described his father as a racist and described an incident where his father spoke in a manner demeaning Jews and praising Hitler.

[48] The Respondent Mother contends that this incident had a profound effect on V. as he was a member of the Air Cadets and felt closely aligned with the Armed Forces. She says the Court should accept the evidence of V. on this point despite the denials of the Applicant Father.

[49] The Respondent Mother described a longstanding history of physical abuse, primarily directed towards the children and especially directed towards B..

[50] Marcie Urbas testified that the children reported regular physical abuse, and this was also described by the Respondent Mother.

[51] The Respondent Mother contends that the incident of 2013 where B. was “spanked” is of particular importance. The Applicant Father’s evidence was that this was the one and only time that he used physical discipline on any of the children. The Applicant Father said that his wife calling the police was wholly unwarranted.

[52] The children have also consistently described the poor nature of access. N. reports her father as being pre-occupied with texting women and showing pictures of scantily clad women to her and B.. She, V. and B. also regularly reported their father talking about his business and his wish that they enter accounting without any regard for their own interests.

[53] The Respondent Mother testified that in her opinion access between B. and the Applicant Father is not positive for B., who abreacts to contact with his father. She said she does not see B. obtaining any benefit from the relationship and it will only improve with time apart and for the Applicant Father to accept and acknowledge his role in the breakdown of the marriage.

[54] The Respondent Mother admits that she may have been prone to overstating some of the assaults, the violence and abuse by characterizing them as being almost every day events, but the overall picture is that of a woman involved in a relationship with a controlling spouse and having to make do with what she was given. She offers her own observation in submissions that this is not uncommon in situations of spousal abuse where the victim does not admit the abuse as it is a reflection on them and puts their security at risk. She says that it takes a long time, the courage and support, to be able to face abuse directly and walk away.

[55] There were several witnesses offered by the Applicant Father to support his good parenting. With the exception of one, his next door neighbour, each person was a client whose observations were, for the most part, one or two times each year when they came to the home for business meetings. The Respondent Mother contends that it is not surprising that the Applicant Father would be well-behaved in front of clients. The interactions with his children were minor in the presence of the clients. None of these witnesses saw the Applicant Father parent the children nor spend any time with them.

[56] At one point in 2017, the Respondent Mother requested that B. see a counselor because he was acting out at home and at school. He was becoming physically violent to his mother and he was oppositional and defiant. The Applicant Father refused the request to consent to counselling. This was a continuation of his refusal to allow counselling for the children to address their personal issues.

[57] The Respondent Mother argues that the evidence of Marcie Goldhar was particularly troubling. Ms. Goldhar was engaged in accordance with the order of Stevenson J. of April 7, 2015.

[58] Paragraph two of that Order provided that there was to be counselling for the children “to assist with the separation, the ongoing conflict and their relationship with the applicant...”

[59] The Respondent Mother argues that Ms. Goldhar embarked on a model of reconciliation counselling which itself was not ordered.

[60] The Respondent Mother contends that Ms. Goldhar was a poor choice for counselling as she did not understand her role. She also, in her first written report, argues that the Respondent Mother showed significant animus to the Respondent Mother’s lawyer and was thereby biased against the Respondent Mother thereafter.

[61] Ms. Goldhar concluded that the Respondent Mother had shown some behaviour which was alienating but that the biggest problem between the children and their father was their fixed view of him derived from what the children described as years of suffering from his abuse.

[62] Joanna Seidel was the Applicant Father’s own counselor. In her evidence, she described the work she was doing with the Applicant Father and he reports to her that he is applying the principles he has learned and that things are better between he and the children.

[63] Ms. Seidel then viewed the email the Applicant Father sent one day after the new access arrangements were put in place in December 2016, and after the first visit failed. Her evidence was that this is not something she would have recommended be written.

[64] The Respondent Mother therefore argues that the conclusion to be drawn from Ms. Seidel’s evidence is that while she is teaching, the Applicant Father is not learning.

[65] The Applicant Father comments on what he calls the breaches of the court orders by the Respondent Mother. He refers to the Respondent Mother restricting and reducing access and confining the access to a short period of time in a library. The evidence of the Respondent Mother on this point was that it was the Applicant Father who “organized” access and chose where the parties would go. It was only much later using suggestions given to him by others that the children would go to other places. She says that the choice of locations for a Sunday meal was entirely the choice of the Applicant Father.

[66] Furthermore, she argues the duration of access was also something wholly within the control of the Applicant Father. He would text the Respondent Mother when access was over and the Respondent Mother would attend to pick up the children.

[67] The first order of July 14, 2014 provided that the Applicant Father have Sunday access from 9:00 a.m. to 9:00 p.m., which was to be revisited upon the children being returned to Toronto. Following the return to Toronto, the access devolved to about one hour on Sundays when the Applicant Father would take the children and, according to the Respondent Mother, return them early. According to the Respondent Mother, this was not caused by her.

[68] The Respondent Mother submits that to conclude that the children were acting under the direction of their mother in a manner which was rude and disrespectful is to ignore the history of abuse and to presume that the children as teenagers have no ability to think independently. The Respondent Mother’s evidence was she was counselling the children to be respectful and polite. As she is not present at access she could not know what took place.

OCL’S POSITION

[69] B. is almost 14. Given his age, the passage of time, the numerous failed attempts at therapeutic reintegration, and B.'s continued strong resistance to contact with his father, the OCL contends that there appears to be little that can be done to repair the relationship at this point. It is his life, his schedule, his time. He deserves to have his wishes in that regard given serious weight, according to the OCL.

[70] Marcie Urbas is the clinician retained by the OCL to assist counsel appointed for the children. Counsel Ms. Stern argued that Ms. Urbas’ role is to assist counsel in conducting interviews and observation visits, gathering information about the children and family, and providing evidence to the Court about B.’s views and preferences as well as other evidence needed to advance counsel’s position on behalf of the child.

[71] The OCL submits that it does not act as an amicus curiae. The OCL is not a friend of the court, or a neutral officer acting as an intermediary between the child and the Court. The OCL takes a position based on the views and preferences of the child and considers the context in which those views and preferences are made. The OCL interviews parents and collateral sources who may have relevant information about the child. The information gathered helps to provide context for the child’s stated views and preferences.

[72] The OCL focuses on three criteria when ascertaining the child’s views and preferences: strength, consistency and independence. Where all three criteria are met, the child’s counsel will advocate based on the views and preferences. In this case the OCL contends that all three criteria were met.

[73] Ms. Urbas has provided an affidavit outlining the views and preferences expressed by the children during interviews conducted from April 2016 to June 2017. The children have been consistently adamant that they do not wish to have contact with their father. They have expressed strong feelings of anger, sadness and victimization at the hands of their father. They have described memories of their father inappropriately physically disciplining them, criticizing them, and being disinterested in them prior to the separation. They have described memories of conflict and violence which resulted in police and CAS intervention. The children are aware that their father has sought parenting education and support, and that he believes that he has demonstrated great personal growth and change. However, this knowledge has not changed their stance, and they find it unacceptable that he did not seek this assistance during the marriage. Beyond that, the children do not see change in the Applicant Father.

[74] As noted in Ms. Urbas’ affidavit, the Respondent Mother’s strongly negative feelings towards the Applicant Father has contributed to B.’s expressed wish to discontinue visits with his father. The Respondent Mother transmitted verbal and non-verbal communication to the children that reveals her disdain for the Applicant Father and disapproval of his parenting. Based on what the children have told Ms. Urbas about comments made by the Respondent Mother, this negative messaging has diminished over time. Although the Respondent Mother’s negative influencing has dissipated, B.’s views have not shifted.

[75] As has also been observed by Marcie Urbas, B.’s views are also shaped by his personal experiences with his father, and his strong feelings of anger, embarrassment, and fear. Although there are inconsistencies in what the children have reported to police, CAS and other professionals, it is undisputed that:

a) The Respondent Mother contacted the police in 2013 as a result of the Applicant Father’s spanking of B.;

b) The paternal grandfather called the police in 2013 as a result of a domestic dispute in the Malhotra home;

c) The CAS was involved in November and December 2013;

d) In April 2013, the Applicant Father pulled down B.’s pants and underwear and with his hand hit him on his buttocks;

e) The Applicant Father has been critical of V. and has called him a donkey; and,

f) The parties argued a lot during cohabitation.

According to the OCL, these troubling and difficult experiences shed light on B.’s rejection of his father.

[76] B. also has expressed that the Applicant Father’s apology is not fulsome or grounded in a full understanding or insight of the impact his past behaviour had on him. B. does not see a change in the Applicant Father’s behaviour and is deeply dissatisfied with the quality of the visits.

[77] It is not contested that the quality of the visits is poor. The Applicant Father gave evidence about the quality of the visits that things have gotten so bad that he sees the children for barely more than an hour each week. He gave further evidence that when the children do not get what they want during a visit, they will often threaten him that they will call police or they will run away. The Applicant Father states that that the children supervise each other and are rude to him. In late January 2015, the children told him for the very first time that they hated him in the presence of the OCL.

[78] Both Joanna Seidel and Greg Babcock gave evidence that they use their sessions with the Applicant Father to discuss, amongst other strategies and tools, fathering from a child-centred approach, to empathize with the children, “perspective take” or put himself in his children’s shoes to evoke empathy for his children, acknowledge, validate and respect their emotions and to be a “stand-up dad”. However, according to the OCL, the Applicant Father has demonstrated to the children that he has not made significant parenting gains and is not able to apply these strategies when, for example:

a) The Applicant Father attended unannounced at a field trip with B.’s class and did not immediately leave when B. expressed discomfort;

b) The Applicant Father, on an access visit, drove the children to the matrimonial home against their wishes and locked the car doors in response to them wanting to vacate the car. After the children fled from the visit, the Applicant Father wanted to carry on the visit and went to their home to request the visit continue;

c) The Applicant Father’s email to N. from December 11, 2016 stating that this is my access time with you and I get to decide access. In fact, his therapist, Ms. Seidel gave evidence after reading the Applicant Father’s email that the email was not helpful; and,

d) The Applicant Father refused to consent to B.’s request for counselling. His own therapist, Greg Babcock, gave evidence that any child could benefit from counselling.

[79] It is not contested that Ms. Goldhar’s efforts at reintegration therapy were not successful. Ms. Goldhar’s report from May 2016 sets out that the Respondent Mother was not able to act in a manner consistent with the goals in the treatment agreement. However, in her cross-examination, Ms. Goldhar gave evidence that she had not had a case before that was successfully resolved where the children were victims of abuse. She also gave evidence on cross-examination that if she had done a proper intake, she would not have taken on the file.

[80] The OCL points out that in Ms. Goldhar’s addendum to her report dated July 20, 2017, she wrote that “multi-faceted outpatient family therapy is contraindicated in the more severe parent-child contact problem cases. The therapy attempted during this process for this family proved unsuccessful, which is one indication it was not a suitable intervention. Further, the failure of the therapy is an indication that further similar efforts are unlikely to be of assistance unless the circumstances change”.

[81] It is the position of the OCL that the Respondent Mother should have sole custody of B. based on his views and preferences to reside with his mother. The parties have a very poor relationship and no ability to communicate effectively about B.’s needs.

[82] B. is requesting that the Court terminate his access to his father, or provide that access be at B.’s discretion and initiated by B.. In the alternative, B. is asking that the current access be reduced, so that visits take place only once per month rather than biweekly. If this is not possible, then B. asks that the visiting schedule not be increased beyond what it is now.

[83] If ongoing access is ordered, B. requests that the Applicant Father be precluded from driving him anywhere, or taking B. to the former Matrimonial Home.

[84] The OCL submits that B.’s strong and consistently held views deserve considerable weight given his age. The role that his mother’s conduct has played in the shaping of these views is clearly a factor to be considered by the Court. However, according to the OCL, the evidence does not support the conclusion that B.’s views are entirely the product of undue influence and therefore undeserving of any consideration by the Court.

[85] Counsel for the Applicant Father has argued that B.’s views and preferences be given no weight on the grounds he alleges alienation. However, the OCL argues that the evidence of B., as provided by Ms. Urbas, does not indicate an alienated child, but rather one who has a realistic estrangement from his father. Children are shaped by their own personal experiences, and a reasonable person looking at the evidence of B.’s perception of his experiences dealing with his father, both before and after separation, can easily see why B. could hold the perspective he does. The OCL suggests this is not a case where B.’s position is so unreasonable as to indicate alienation by the Respondent Mother.

[86] The OCL argues that in high conflict cases such as this one, she is aware of the possibility of alienation and is alive to the issue in its evaluation. The use of a clinician to assist counsel is one safeguard used to guard against being misled by an alienated child. Had the OCL had concerns regarding alienation, these would have been raised both in Ms. Urbas’ affidavit and in the questioning of witnesses. To the contrary, the OCL saw B.’s objections as reasonable and realistic based on the surrounding circumstances, and urges the Court to come to the same conclusion based on the evidence.

THE LAW

Credibility

[87] In R. v. White, 1947 1 (SCC), [1947] S.C.R. 268, at p. 272, the Supreme Court of Canada discussed the inexact science of weighing a witness’ credibility:

It is a matter in which so many human characteristics, both the strong and the weak, must be taken into consideration. The general integrity and intelligence of the witness, his power to observe, his capacity to remember and his accuracy in statement are important. It is also important to determine whether he is honestly endeavouring to tell the truth, whether he is sincere and frank or whether he is biased, reticent and evasive.

[88] In Christakos v. De Caires, 2016 ONSC 702, 2016 CarswellOnt 1433, at para. 10, I summarized some aspects of the credibility assessment as set out in Re Novak Estate, 2008 NSSC 283, 269 N.S.R. (2d) 84, at paras. 36-37:

There are many tools for assessing credibility:

a) The ability to consider inconsistencies and weaknesses in the witness’ evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony and the testimony of other witnesses.

b) The ability to review independent evidence that confirms or contradicts the witness’ testimony.

c) The ability to assess whether the witness’ testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 252 (BC CA), 1951 CarswellBC 133, it is “in harmony with the preponderance of probabilities which a practical [and] informed person would readily recognize as reasonable in that place and in those conditions”, but in doing so I am required not to rely on false or frail assumptions about human behaviour.

d) It is possible to rely upon the demeanour of the witness, including their sincerity and use of language, but it should be done with caution (R. v. Mah, 2002 NSCA 99 [at paras.] 70-75).

e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence. R. v. J.H., 2005 253 (ON CA), [2005] O.J. No.39 (OCA) [at paras.] 51-56). There is no principle of law that requires a trier of fact to believe or disbelieve a witness’ testimony in its entirety. On the contrary, a trier may believe none, part or all of a witness’ evidence, and may attach different weight to different parts of a witness’ evidence. (See R. v. D.R. 1996 207 (SCC), [1996] 2 S.C.R. 291 at [para.] 93 and R. v. J.H. supra). [Emphasis omitted.]

Best Interest of the Children

[89] Because this matter started as a Divorce action, I have considered the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) (the “DA”):

16. (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

[90] Sections 16(8)-(10) of the DA stipulate:

(8)In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

(9)In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

(10)In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[91] The Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “CLRA”) at s. 24 also details the factors that a court shall consider when making a determination with respect to custody and access. While not strictly applicable, the CLRA factors may act as a useful guide for a best interests analysis under the DA: A.F. v. D.G.1., 2012 ONSC 764, 2012 CarswellOnt 1351, at para. 185.

[92] Section 24 of the CLRA is set out below:

(2)The court shall consider all the child's needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child's family who reside with the child, and

(iii) persons involved in the child's care and upbringing;

(b) the child's views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home enV.onment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3(1); 2009, c. 11, s. 10.

(3)A person's past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent. 2006, c. 1, s. 3 (1).

(4)In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person's household; or

(d) any child. 2006, c. 1, s. 3 (1).

Status Quo

[93] There is no presumption that the status quo will dictate the future parenting regime; rather, it is a factor for the court to consider: Ackerman v. Ackerman, 2014 SKCA 86, 442 Sask. R. 113, at para. 32.

[94] As the Supreme Court of Canada stated in Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, at para. 44, applying Appleby v. Appleby (1989), 1989 8821 (ON SC), 21 R.F.L. (3d) 307 (Ont. H.C.):

Every child is entitled to the judge's decision on what is in its best interests; to the extent that presumptions in favour of one parent or the other predetermine this inquiry, they should be rejected no matter what test or axiom one adopts from the many and varied reported decisions on this subject, each case must, in the final analysis, fall to be determined on its particular facts and, on those facts, in which way are the best interests of the children met. [Citations omitted.]

[95] It is useful to consider the status quo to determine what is working for the child and what is not.

Long-Term Best Interest

[96] In A.(A.) v. A.(S.N.), 2007 BCCA 363, 40 R.F.L. (6th) 253, at paras. 26-28, the BC Court of Appeal held that it is a reversible error of law for a court not to consider the long-term best interest of a child:

The trial judge was indeed faced with a "stark dilemma" — albeit one created largely by the custodial parent. He was obviously aware that he was required to "focus" on M's best interests. He carefully reviewed the evidence and made clear findings of fact. As has been seen, these findings militated almost exclusively against the mother's continuing as the custodial parent. Yet at the end of the day, the trial judge chose to leave M in a situation that he said would be detrimental to her in the long run and indeed had "already been detrimental to her". He found that this damage, which would almost surely continue, was preferable to making the fundamental change" that Dr. Krywaniuk had stated was necessary. Expressing regret regarding the "inability" of the Court to manage the results of the forcible removal of the child from her mother. The trial judge deferred to a "highly manipulative" and "intransigent" parent who would clearly never permit her child to have any sort of relationship with her father.

We are of the view that in so concluding, the trial judge erred in law. We agree with counsel for the appellant that the trial judge wrongly focused on the likely difficulties of a change in custody — which the only evidence on the subject indicates will be short-term and not "devastating" — and failed to give paramountcy to M.'s long-term interests. Instead, damage which is long-term and almost certain was preferred over what may be a risk, but a risk that seems necessary if M is to have a chance to develop normally in her adolescent years. As Ms. Label argued, it was a contradiction in terms, and legal error, for the trial judge to state that M will be damaged by continuing in her mother's custody, but to order that she remain in exactly that situation. The obligation of the Court to make the order it determines best represents the child's interests cannot be ousted by the insistence of an intransigent parent who is "blind" to her child's interests.

Parental Alienation

[97] A finding of parental alienation and the subsequent order must be determined on a case-by-case basis. As stated by MacPherson J. in C.(W.) v. E.(C.), 2010 ONSC 3575, 93 R.F.L. (6th) 279, at para. 169 [C.(W.)]:

“[E]ach case of alienation must be considered on its own particular facts.”

[98] This concept is consistent throughout case law on parental alienation.

[99] When determining whether parental alienation exists in a particular case, courts generally analyze the facts and weigh the opinion of experts, specifically court-appointed assessors. For example, in Pettenuzzo-Deschene v. Deschene (2007), 2007 31787 (ON SC), 40 R.F.L. (6th) 381 (Ont. S.C.), at para. 12 [Pettenuzzo], the father applied for a variation of interim custody and access and Whalen J. appointed Dr. Hepburn, a clinical psychologist, to explore the possibility of parental alienation. On Dr. Hepburn’s conclusions, Whalen J. found alienation of the father by the mother. Similarly, in McAlister v. Jenkins (2008), 2008 35923 (ON SC), 54 R.F.L. (6th) 126 (Ont. S.C.) [McAlister], the court ordered an assessment by Dr. Blake, a psychologist, and Dr. Blake’s assessment resulted in the court’s finding of parental alienation. In Maharaj v. Wilfred-Jacob, 2016 ONSC 7925, at para. 145 [Maharaj], Trimble J. found that he could not make a finding of alienation due to the fact that it required “an expert diagnosis” and neither party led evidence to that effect.

[100] In contrast, findings of parental alienation were made in other cases without expert evidence being tendered.

[101] For example, in Cantave v. Cantave, 2014 ONSC 5207, 49 R.F.L. (7th) 368, two sons had been alienated from their mother due to the father’s conduct. In analyzing alienation, the court stated the following, at para. 55:

In Fielding v. Fielding, 2013 ONSC 5102 (Ont. S.C.J.), at para. 131, Mackinnon J. relied on expert evidence and made findings about what factors were often present in cases of parental alienation. The Applicant did not present expert evidence of parental alienation at this trial however I find that ma[n]y of the characteristics of parental alienation as found by Mackinnon J. in the Fielding decision are present in the case before me.

[102] The Court then listed the conditions and factors relied on in Fielding to find alienation; the factors were then applied to the case at hand.

[103] Similarly, in Ottewell v. Ottewell, 2012 ONSC 5201, at para. 57, McCarthy J. found parental alienation by the mother on the facts of the case without enlisting expert evidence.

[104] Lastly, in Hazelton v. Forchuk, 2017 ONSC 2282, on an interim motion, Gray J. found parental alienation based on the facts of the case, without any assessment or expert evidence. Specifically, Gray J. found the following, at para. 75:

[W]here parental alienation exists, it is manifestly important that steps be taken immediately. If they are not, the situation will only get worse. If the alienating parent continues to have unfettered access to the children, there is little doubt that the poisoning of the children's minds will continue. At some point, the restoration of a relationship with the other parent becomes much more difficult, if not impossible.

[105] Gray J. concluded at, para. 76:

In this case, I have little doubt that the children have been alienated from the respondent through the combined efforts of the applicant and Caroline Hay. This is the only rational conclusion to be reached on the evidence.

[106] None of the professional witnesses in this case were asked an opinion regarding alienation. None of them were in fact retained to assess this issue.

[107] Parental alienation is a legal concept as opposed to a mental health diagnosis. As such, it is my view that the court can make a finding of alienation based upon an analysis of the facts alone without expert evidence.

[108] Experts have developed a list of factors to aid in identifying parental alienation. Cases have cited these factors. For example, when analyzing the issue of parental alienation in C.(W.), MacPherson J. qualified Dr. Fidler as an expert in alienation. Dr. Fidler set out indicators of alienation; these have been cited in numerous cases: L.(A.G.) v. D.(K.B.) (2009), 2009 943 (ON SC), 93 O.R. (3d) 409 (Ont. S.C.), at para. 92 [L.(A.G.)]; G.(J.M.) v. G.(L.D.), 2016 ONSC 3042, at para. 134 [G.(J.M.)]; Maharaj, at para. 140.

[109] The following are indicators of alienation:

Child Behaviours:

• View of parents one-sided, all good or all bad; idealizes one parent and devalues the other
• Vicious vilification of target parent; campaign of hatred
• Trivial, false and irrational reasons to justify hatred
• Reactions and perceptions unjustified or disproportionate to parent's behaviours
• Talks openly to anyone about rejected parent's perceived shortcomings
• Extends hatred to extended family and pets (hatred by association)
• No guilt or ambivalence regarding malicious treatment, hatred, etc.
• A stronger, but not necessarily healthy, psychological bond with alienating parent than with rejected parent
• Anger at rejected parent for abandonment; blames him/her for divorce
• Speed is brittle, a litany; obsessed; has an artificial quality; affect does not match words; no conviction; unchildlike, uses adult language; has a rehearsed quality
• Stories are repetitive and lacking in detail and depth
• Mimics what siblings report rather than own experience
• Denial of hope for reconciliation; no acknowledgement of desire for reconciliation
• Expresses worry for preferred parent, desire to care for that parent; or, defensive denial that child is indeed worried about parent

Alienating Parent Behaviours:

• Allows and insists that child makes decisions about contact
• Rarely talks about the other parent; uninterested in child's time with other parent after contact; gives a cold shoulder, silent treatment, or is moody after child's return from visit.
• No photos of target parent; removes reminders of the other parent
• Refusal to hear positive comments about rejected parent; quick to discount good times as trivial and unimportant
• No encouragement of calls to other parent between visits; rationalizes that child does not ask
• Tells child fun things that were missed during visit with other parent
• Indulges child with material possessions and privileges
• Sets few limits or is rigid about routines, rules and expectations
• Refuses to speak directly to parent; refuses to be in same room or close proximity; does not let target parent come to door to pick up child
• No concern for missed visits with other parent
• Makes statements and then denies what was said
• Body language and non-verbal communication reveals lack of interest, disdain and disapproval
• Engages in inquisition of child after visits
• Rejected parent is discouraged or refused permission to attend school events and activities
• Telephone messages, gifts and mail from other parent to child are destroyed, ignored or passed on to the child with disdain
• Distorts any comments of child that might justify accusations
• Does not believe that child has any need for relationship with other parent
• When child calls and is quiet or non-communicative, parent wrongly assumes pressure from target parent, or that child is not comfortable with target parent; evidence of bad parenting; does not appreciate that child is uncomfortable talking to alienating parent about target parent
• Portrays other parent as dangerous, may inconsistently act fearful of other parent in front of child
• Exaggerates negative attributes of other parent, and omits anything positive
• Delusional false statements repeated to child; distorts history and other parent's participation in the child's life; claims other parent has totally changed since separation
• Projection of own thoughts, feelings and behaviours onto the other parent
• Does not correct child's rude, defiant and/or omnipotent behaviour directed towards the other parent, but would never permit child to do this with others
• Convinced of harm, when there is no evidence
• False or fabricated allegations of sexual, physical and/or emotional abuse
• Denigrates and exaggerates flaws of rejected parent to child
• Says other parent left "us", divorced "us" and doesn't love "us"
• Over-involves child in adult matters and litigation
• Child required to keep secrets and spy or report back on other parent
• Child required to be messenger
• Overt and covert threats to withdraw love and affection from child unless other parent is rejected
• Extreme lack of courtesy to rejected parent
• Relocation for minor reasons and with little concern for effects on child

[110] Once a finding of alienation is made, courts must then determine the appropriate order. MacPherson J. in C.(W.) summarized the available orders, as articulated by Dr. Fidler, as the following:

1. Do nothing and leave the child with the alienating parent;

2. Do a custody reversal by placing the child with the rejected parent;

3. Leave the child with the favoured parent and provide therapy; or

4. Provide a transitional placement where the child is placed with a neutral party and therapy is provided so that eventually the child can be placed with the rejected parent.

[111] The following cases illustrate the fact-specific nature of this area of law.

(i) The following cases did not order a change of custody

[112] In Luo v. Le, 2016 ONSC 202, the father brought a motion to transfer custody of the children on the basis of alienation. The father alleged that the mother was uncooperative with facilitating access and, specifically, that the mother refused to cooperate with the program at Willow Centre designed to provide reunification between the older daughter and the father. Evidence from psychologists at the Willow Centre found the following, at para. 18:

The long-term impact on the girls of not having the opportunity to have a real and meaningful relationship with their father would be far more serious than the short-term stress of altering the custody in a manner that would enable the girls to spend enough time with and to have the opportunity to live with their father.

[113] However, Charney J. found that, of the options presented in C.(W.), which are stated above, option three was the best choice. Charney J. upheld the previous order of Vallee J. which consisted of a graduated access schedule combined with reintegration therapy. Specifically, Charney J. found that a custody reversal was not appropriate at this time and could be a “recipe for failure and long-term resentment” due to the daughters’ dismissal toward the father and separation anxiety with the mother.

[114] In G.(J.M.), Fryer J. had to determine the best course of action to repair the father’s relationship with the children. In this case, the mother undermined and interfered with the father’s relationship with the children and she limited the father’s visits. The father proposed sole custody for a period of 90 days and a workshop program entitled Dr. Warshak’s Family Bridges program. Fryer J. stated, at para. 181, that “the negative impact of completely removing these children from the care of the mother could outweigh the proposed benefits.” Fryer J. specifically noted the children’s attachment to the mother and their significant emotional turmoil. Fryer J. ordered that the children remain living primarily with the mother with regular extended alternate weekend visits with the father as well as half of their vacation time. This was similar to the order in place.

[115] In S.(N.) v. N.(C.), 2013 ONSC 556, 34 R.F.L. (7th) 296, on the basis of alienation, the mother argued for custody of the children or a transitional placement to allow for reunification. In this case, the father had long conversations with the children where he spoke negatively about the mother. After reviewing evidence of psychologists and psychiatrists, Howden J. found that both parties played a part in damaging the children and that, although the father alienated the mother, it was a hybrid situation. Howden J. found that it would be too devastating to disrupt the relationship with the father and radically change the custodial situation. Therefore, both children remained in the father’s care, with counselling, to be reviewed in six months.

(ii) The following cases found that a change of custody was appropriate in the circumstances

[116] Courts have recognized that a change in custody can sometimes be appropriate in parental alienation circumstances. Specifically, as detailed in C.(W.), at para. 168, “it may be in the best interests of children…to be removed from an alienating parent and placed with the rejected parent.” This has been echoed in numerous cases: Children’s Aid Society of Toronto v. M.S., 2018 ONCJ 14, at para. 108; McAlister, at para. 155; B.(S.G.) v. L.(S.J.), 2010 ONSC 3717, 102 O.R. (3d) 197, at para. 65 [B.(S.G.)]; Jennings v. Garrett (2004), 2004 17126 (ON SC), 5 R.F.L. (6th) 319 (Ont. S.C.), at para. 135.

[117] In Maharaj, the mother sought sole custody of their child, Jayden, on the basis of alienation. At the time of the hearing, the parties had joint custody of Jayden. Trimble J. made the following findings, at para. 77:

The evidence supports the conclusion, and I so conclude that Mr. Wilfred-Jacob has manipulated Jayden, telling him that his mother drinks and smokes marijuana, wants to take Mr. Wilfred-Jacob's property and money, and has stolen Jayden's money and Jayden's gold. He has manipulated access to suit himself.

[118] Due to these findings, Trimble J. ordered full custody to the mother and access to the father.

[119] In B.(S.G.), the mother brought an application for sole custody of the son. The fact that deliberate, irrational alienation occurred in this case was not in dispute – both the arbitrator who conducted the arbitration for the parties and the judge who heard the appeal found alienation. At issue in this case was the appropriate solution. Mesbur J. found, at para. 65, that “in cases of severe irrational alienation, the alienated child must be removed from the favoured parent for a time.” Therefore, Mesbur J. ordered sole legal and residential custody to the mother as well as the authorization to obtain treatment at the Family Bridges program: a Workshop for Troubled and Alienated Parent-Child Relationships.

[120] In L.(A.G.), the father applied for sole custody of the three children with no access to the mother due to alienation. After evidence from Dr. Fidler, an expert in alienation, McWatt J. found that the mother had alienated the three children from their father; this amounted to emotional abuse. McWatt J. found that this alienation was neither reasonable nor warranted. The mother was unwilling to help rectify the situation and instead, she contributed to it. McWatt J. found that the mother consistently used the police to thwart the father’s access and she moved further away from the father to hinder their children’s relationship with the father. McWatt J. ordered sole custody to the father with no access by the mother, except for the purpose of counselling, pending a review of the matter.

(iii) The following two cases involved a consideration of reversing custody but the court chose not to do so because both parents played a role in the alienation

[121] In Fielding v. Fielding, 2013 ONSC 5102, 39 R.F.L. (7th) 59, aff’d 2015 ONCA 901, 129 O.R. (3d) 65, the mother argued that the father alienated her children from her; she sought sole custody of her three children. While MacKinnon J. did not specifically discuss B.(S.G.), Mackinnon J. cited the case in Her Honour’s judgment when finding the following, at para. 165:

There is strong support in Ontario case law for the proposition that a change of custody may be the appropriate response to findings of pure alienation, even when the alienated child opposes the change and is of an age where, in general, his/her wishes would receive significant weight. I also accept that parental alienation is a form of emotional abuse with potential long-term negative repercussions for the child.

[122] However, Mackinnon J. did not award the mother custody in this case, due to the following, at para. 166:

My finding is that this is not a case of pure alienation. To the contrary, I accept Dr. Sutton’s opinion that it is a mixed pathology case where alienating conduct by both parents has been at play; and where there are also other complicated contributing factors. The mother submits that both parties are normative parents and that, without this acceptance and acknowledgement, the family will remain fragmented. I disagree. The Fieldings’ parenting is not normative. Significantly, the mother's own parenting style and current inability to see or accept her contributions to her relationship problems with Katie and Sean, contra-indicate the change in their custody that she seeks. Residential custody of these children could not confidently be transferred to her. The case law does not include examples of court ordered changes in custody in mixed cases such as this where the shortcomings of the parent seeking custody are a significant contributing factor to the dilemma.

Findings and Order

1. Credibility

A. Applicant Father

[123] Overall I found that the Applicant Father was credible. He gave his testimony in a forthright, soft-spoken (for the most part) and emotive manner. I find that he was honestly endeavoring to tell the truth sincerely and frankly. The two therapists with whom he has worked for many months gave evidence that he has diligently and desperately attempted to improve his communication and relationship with the children. He made admissions against his own interest regarding spanking B. and engaging in heated arguments with his wife. He acknowledged that for years prior to separation the children treated him with disrespect and disdain. He acknowledged on occasion referring to his son V. as a donkey.

[124] In cross-examination he became emotional but not evasive. He spoke with certainty and remained consistent in his testimony. His testimony was also consistent with that of the other witnesses.

[125] When one considers the multitude of allegations made against the Applicant Father since the separation, I find it surprising that he did not give up on the pursuit of his relationship with his three children. He has been determined and resilient. His witnesses gave evidence in support of his position that he was proud of his children and had a workable relationship with them prior to separation notwithstanding the displayed lack of respect.

B. Respondent Mother

[126] I found the testimony of both the Respondent Mother and her adult son V. completely lacking in credibility. The Respondent Mother’s testimony was given in a contentious and bitter manner. In cross-examination her testimony was argumentative, evasive and coloured with hyperbole.

[127] Her testimony about the Applicant Father’s conduct was inconsistent with all other evidence apart from that of V. and the evidence of the other children proffered by the OCL, the admissibility of which will be addressed below.

[128] By the time of trial the list of allegations against the Applicant Father by the Respondent Mother and children included: beating them on a daily basis from the age of one, whipping them with a belt, pushing N. into the wall, grabbing B. by the penis, driving the car with the doors open with the children in the car, having a house infected with ants and rats, and being a racist, and a womanizer.

[129] The greatest difficulty I have with the Respondent Mother’s evidence of allegations against the Applicant Father is that it has evolved since the date of separation.

[130] Prior to the separation in 2014, following the spanking incident, she reported to both the police and the CAS at the time that she was planning on separating from the Applicant Father because of irreconcilable differences. Neither she nor the children reported any form of abuse outside of this isolated incident of spanking during the investigation by the CAS and police.

[131] Immediately following the separation after the Respondent Mother unilaterally moved the children to Guelph, her lawyer wrote a letter to the Applicant Father suggesting that the parties negotiate terms of a separation agreement and that the Applicant Father would have weekly unsupervised visits with the children. Absolutely no allegation of any wrongdoing was included in this initial letter.

[132] Harvison-Young J., as she then was, in her July 31, 2014 endorsement (ordering the mother return the children to Toronto from Guelph and enrol them in school) made the following comment: “this court cannot sanction the mothers actions, which were carefully planned, to remove the children from the jurisdiction, surreptitiously and with careful planning, and to effectively oust their father from their daily lives as well as her own”.

[133] The Respondent Mother called no evidence at trial to support her allegations of extensive abuse by the Applicant Father. If such allegations had any substance, I suspect that the police, CAS and perhaps the school would have been involved and could have been called to give corroborating evidence. On one occasion in 2013, the CAS did become involved after the Applicant Father admittedly used corporal punishment in response to an argument with B. which involved the child spitting in his face. The notes kept by the CAS worker at that time and filed into evidence contained statements from the Respondent Mother that the Applicant Father had never abused either her or the children. The society closed their file after a short investigation. No charges were laid by the police.

[134] No police reports, medical reports or school records were filed in an effort to confirm the abuse alleged.

[135] The report prepared by Ms. Goldhar, who was retained to attempt therapy to rebuild the relationship between the children and the Applicant Father, indicated that the children were not afraid of their father.

[136] During cross-examination the Respondent Mother simply refused to accept any responsibility for the extensive arguing and yelling that occurred in the home notwithstanding the fact that earlier witnesses testified that she had been equally involved in those verbal altercations, at times being the aggressor.

[137] She acknowledged during cross-examination that she could see no benefit whatsoever in the children having a relationship with their father. She clearly had a motive to fabricate the evidence about the Applicant Father’s conduct.

[138] The Respondent Mother was unsuccessful in both her motion to keep the children in Guelph and her motion to terminate the Applicant Father’s access. It appeared to me that she saw a need to continue to up the ante as time passed, fabricating more extensive and fantastic allegations against the father in her effort to eliminate his relationship with the children.

[139] Independent evidence contradicted the Respondent Mother’s testimony about the Applicant Father’s conduct.

[140] Her evidence regarding the Applicant Father’s conduct was simply not plausible. It was not at all “in harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”.

[141] For the same reasons, the evidence from the parties’ son V. that the father regularly struck B. was not credible.

2. The children’s views and preferences

[142] In support of its position that B. desires no relationship whatsoever with the Applicant Father at this time and seeks an order that any future access would be in his discretion, the OCL put forward the 2013 Ontario Court of Appeal case of Decaen v. Decaen, 2013 ONCA 218. Regarding the wishes of the children the court noted:

[42] In assessing the significance of a child’s wishes, the following are relevant: (i) whether both parents are able to provide adequate care; (ii) how clear and unambivalent the wishes are; (iii) how informed the expression is; (iv) the age of the child; (v) the maturity level; (vi) the strength of the wish; (vii) the length of time the preference has been expressed for; (viii) practicalities; (ix) the influence of the parent(s) on the expressed wish or preference; (x) the overall context; and (xi) the circumstances of the preferences from the child’s point of view: See Bala, Nicholas; Talwar, Victoria; Harris, Joanna, “The Voice of Children in Canadian Family Law Cases”, (2005), 24 C.F.L.Q. 221. It is apparent that the trial judge considered all of these relevant factors.

[143] The OCL also relies upon the analysis of Kiteley J. in Mosherov v. Kovalev, 2013 ONSC 5767, at para. 48, regarding the wishes of a 13-year-old boy who was the subject of a custody trial:

I do not accept Mr. Mosherov’s submission that Michael is asking to maintain the status quo because he is under the influence of his mother. There was a time when that was true. He has matured. He has been given a voice through the Office of Children’s Lawyer. I recognize that by accepting the submission of counsel for the Office of Children’s Lawyer as to the views and preferences of a 13 year old, there is a risk of empowering an early teenager more than is appropriate and drawing him into an adult conflict. However, given the evidence about Michael’s transitions in the year leading up to the trial and the context in which he has matured and the clarity of his views and preferences and insight into the role he plays in the parental conflict, I accept Ms. Noble’s evidence and Ms. Leach’s submission. In this case, the voice that Michael has been given can be relied on.

[144] Lastly, I refer to the Ontario Court of Appeal case of Kincl v. Malkova, 2008 ONCA 524, at para. 3, relied upon by the OCL:

Veronica is almost 14 years of age and her views are entitled to considerable weight; in reality she will do what she wishes in any event and the absence of access over the past almost three years seems to confirm her views in that regard, at least for the present time. We do not think she should be in a continuing position where she may be said to be in breach of a court order.

[145] In this case, however, I find that the children have been significantly influenced by the views of the Respondent Mother against the Applicant Father. I do not accept the OCL’s submissions that the child’s views are independent. The OCL concludes the negative messaging from the mother against the father dissipated over time. This does not, however, change the fact that B. was poisoned against his father by the mother. His views are not independent and I am not prepared to rely upon them. The details of my finding with regard to alienation are outlined below.

[146] When there is a finding of parental alienation, little weight should be given to the child’s wishes. For example, in Pettenuzzo, at para. 55, Whalen J. stated “if I accept that there has been parental alienation in this case, as I do, then the child’s preferences are not her own, but are those of her mother or other maternal family as she has been convinced.”

[147] This concept is consistently applied in parental alienation jurisprudence.

[148] Furthermore, I have difficulty accepting the hearsay evidence of B.. Hearsay, in the form of the out of court statements of a child, should not be admitted into evidence for the truth of what was said unless the requirements of necessity and reliability have been met.

[149] In Ward v. Swan (2009), 2009 22551 (ON SC), 95 O.R. (3d) 475 (S.C.), R.J. Harper J. stated the following regarding hearsay evidence of a child:

16 There are numerous factors in the process of reasoning that the judge must consider. Some of these factors are outlined by Professor Thompson, supra, and by Professors Nicholas Bala, Victoria Talwar, and Joanna Harris, “The Voice of the Children in Canadian in Family Law Cases” (2005) 24 C.F.L.Q. 221, and include as follows:

• the court should consider circumstances surrounding the statement, such as spontaneity
• timing of the statement in relation to the incident
• method and timing of the recording, if one is made
• absence of suggestion or manipulation
• whether the statement is in response to a non-leading question

17 The court must also consider the demeanour of the witness that is testifying and providing the out of court statement, and whether or not that witness has a vested interest in the outcome.

18 Circumstances surrounding the child must also be considered, such as motive to fabricate, the age of the child, cognitive abilities of the child, and the contents and context of the statement.

19 The above are just a few examples of the approach that I have taken in this case in order to assess the reliability of the statements that are offered as out of court statements for the proof of the truth of the facts contained therein.

20 I consider this analysis important to both the factual witnesses and expert testimony. The mere fact that an expert, through either an assessment or a social work assist, is providing the out of court statement is no guarantee of their reliability. All of the other factors still must be considered.

[150] B. was subject to manipulation by his mother over a long period of time. The OCL acknowledges this fact in the affidavit of the social worker Ms. Urbas. She said, “[the Respondent Mother’s] strongly negative feelings toward the [Applicant Father] has contributed to the child’s expressed wish to discontinue visits with his father. The [Respondent Mother] has transmitted verbal and non-verbal communication to the children that reveals her disdain for the [Applicant Father] and disapproval of his parenting.” The OCL also contends that this influence has dissipated. However, I have no evidence to suggest that B. has matured and escaped the influence of his mother such that his views are independent. The influence may have dissipated but the alienation by the Respondent Mother continues.

[151] The hearsay evidence from the social worker assisting the OCL is simply not reliable enough to pass the hearsay test given the influence of the Respondent Mother. The wishes of B. as expressed by Ms. Urbas cannot be admitted into evidence for the truth of what was said.

[152] Even if I was prepared to admit B.’s wishes into evidence through Ms. Urbas, I cannot give his wishes any weight. He has been poisoned against his father and his views are not his own.

[153] Furthermore, I am not prepared to abandon the court’s role of determining best interest of the child just because “he will do what he wishes in any event.” My intention is to fashion an order that will prevent B. from voting with his feet at a time that he is still holding strong negative feelings towards his father.

3. Best interest of the child

A. Maximum contact

[154] Fryer J. in G.(J.M.), at para. 99 and following, offers a good analysis of this principle:

99 The DA and the CLRA both enshrine the principle that children should have maximum contact with each parent as is consistent with the children's best interests.

103 It is contrary to the best interests of children, and indeed harmful to them, to become unjustifiably estranged from a parent whether the result of alienation or a combination of factors: Cantave v. Cantave, 2014 ONSC 5207, 49 R.F.L. (7th) 368, at paras. 64-65; J.K.L. v. N.C.S., 2008 30289 (ON SC), 54 R.F.L. (6th) 74, at para. 126; C.S. v. M.S., 2010 ONCA 196, 76 R.F.L. (6th) 14, at para. 7.

104 In his mini-review dated September 3, 2014, Dr. Morris expressed concern about the failure to implement the recommended parenting schedule at p. 10; he stressed how important it is for the mental health and wellbeing of M.G. and A.G. to have a relationship with the Father.

105 In her capacity as an expert with respect to unjustified rejection, Dr. Fidler outlined the longer-term effects on children of being denied a relationship with one parent. In their article entitled "Children Resisting Post-Separation Contact with a Parent: Concepts, Controversies, and Conundrums" (2010) 48:1 Fam. L. Rev. 10, Dr. Fidler and co-author Professor Nicholas Bala state:

Relevant to the controversy over how much weight to give children's preferences, whether or not we should heed their wishes, and if they mean what they say, Baker reported that while most of the adults distinctly recalled claiming during childhood that they hated or feared their rejected parent and on some level did have negative feelings, they did not want that parent to walk away from them and secretly hoped someone would realize that they did not mean what they said.

106 Dr. Fidler stated that children who are caught in a cycle of unjustified rejection are more likely to suffer from low self-esteem, self-hatred, self-blame, guilt and substance abuse problems. Children do better when they have a relationship with both of their parents.

[155] Maintaining maximum contact between B. and the Applicant Father is, in my view, in the child’s best interest.

B. Past conduct /domestic violence

[156] Section 16(9) of the DA mandates against considering past conduct unless that conduct is relevant to the ability of that person to act as a parent to a child. Section 24 of the CLRA says much the same, except at s. 24(4), where the court is required to consider any violence or abuse committed against his or her spouse or any child when assessing a person's ability to act as a parent.

[157] Based on my findings regarding credibility, I find that the past conduct of the parties did involve domestic violence. However, this violence was limited to heated verbal exchanges between the parties which the children were exposed. Both parties participated in these exchanges to the same extent. The Applicant Father also admittedly spanked the child on one occasion.

[158] In summary, I do not consider the past conduct of the Applicant Father to be an impediment to his ability to act as a parent. However, as stated below, I do find that the past alienating conduct of the Respondent Mother does reflect an inability to adequately parent.

C. The ability and willingness of the parents to ensure the child has a meaningful relationship with the other.

[159] The Respondent Mother clearly testified during cross-examination that she saw no benefit to the children having any relationship whatsoever with the Applicant Father. She stated flat out that she could not co-parent with the Applicant Father.

[160] The Respondent Mother moved the children to Guelph in an effort to, in the words of Harvison-Young J., as she then was, “oust their father from their daily lives as well as her own.” In these proceedings she brought a motion unsuccessfully to terminate access between the children and the father.

[161] I have absolutely no confidence that the Respondent Mother will take any steps to preserve the shaky relationship, let alone promote a meaningful relationship, between the child and the Applicant Father. On the other hand, I have no evidence before me to suggest that the Applicant Father would not take steps to ensure the child has a meaningful relationship with the Respondent Mother.

D. Other factors including the long-term best interests of the child

[162] I have considered the factors outlined under s. 24 of the CLRA. Under s. 24(2)(d), I am to consider “the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child.”

[163] The Respondent Mother does not hide the fact that she sees no benefit to the child having a relationship with the Applicant Father. She moved the child away in an effort to limit that relationship. She has poisoned the child against the Applicant Father. She admits that she cannot co-parent with the Applicant Father. Evidence was also heard that the Respondent Mother struggles to meet the educational needs of the child. School attendance was poor and his grades were suffering under the care of the Respondent Mother at a time when the Applicant Father was having very little contact with the child and no input into his education.

[164] The child has also, in the past year, become violent in the Respondent Mother’s care toward her. He has been emotionally damaged by the Respondent Mother’s parenting. B. told Ms. Urbas, the OCL investigator, that he believes he has an addiction to video games that is negatively impacting his schooling. For these reasons, I question the ability of the Respondent Mother to meet the child’s needs and to act as a parent.

[165] Under ss. 24(2)(c) and (f), I am to consider the length of time the child has lived in a stable home enV.onment and the permanence and stability of the family unit with which it is proposed that the child will live. Although the current circumstances (the child residing almost exclusively with the Respondent Mother and having nominal contact with the Applicant Father) have existed for four years, I do not find that they are what amounts to a stable home enV.onment or a permanent family unit for B..

[166] As stated above there is no presumption that the status quo will dictate the future parenting regime.

[167] I believe it would be wrong for me to focus mainly on the short-term difficulties that would result from a change of custody for the child. I have no doubt that B. will initially struggle tremendously with the order I am making. However, continuing with the status quo in my view will not only result in a termination of the child’s relationship with the Applicant Father but it will be detrimental to his emotional development in the long-term to continue to be exposed to the destructive parenting of the Respondent Mother. The long-term detrimental impact on the child of a permanently severed relationship with his father and ongoing exposure to the substandard parenting of the Respondent Mother far outweighs the emotionally challenging but temporary adjustment to living with the Applicant Father and short-term difficulties of having no contact with the Respondent Mother.

4. Parental alienation

[168] I have considered the list of indicators of alienation outlined by Dr. Fidler above.

[169] Regarding the child behaviours, I find that B. displays the following:

• View of parents one-sided, all good or all bad; idealizes one parent and devalues the other: B. is unable to articulate any good memories of time with his father and/or good qualities of his father.
• Vicious vilification of target parent; campaign of hatred: B. expresses hatred openly toward his father.
• Trivial, false and irrational reasons to justify hatred: B.’s hatred is based on allegations that are without merit. There is no evidence to corroborate allegations of extensive physical abuse, or of bad driving, or of an infested Matrimonial Home.
• Reactions and perceptions unjustified or disproportionate to parent's behaviours: B.’s insistence on short visits at a library and refusal to attend at the Matrimonial Home are irrational and unjustified.
• No guilt or ambivalence regarding malicious treatment, hatred, et cetera: B. believes he is justified in holding onto his hatred toward his father.
• A stronger, but not necessarily healthy, psychological bond with alienating parent than with rejected parent: B. has no bond with his father. He is closer to his mother, but is showing signs of an unhealthy attachment, becoming violent toward his mother.
• Denial of hope for reconciliation; no acknowledgement of desire for reconciliation: B. clearly articulated to several witnesses that he had no desire to participate in any counselling with a view to reconciliation.

[170] Regarding the alienating parent behaviours, I find that the Respondent Mother displays the following:

• Allows and insists that child makes decisions about contact
• Sets few limits or is rigid about routines, rules and expectations
• Refuses to speak directly to parent; refuses to be in same room or close proximity; does not let target parent come to door to pick up child.
• No concern for missed visits with other parent
• Makes statements and then denies what was said
• Body language and non-verbal communication reveals lack of interest, disdain and disapproval
• Rejected parent is discouraged or refused permission to attend school events and activities.
• Does not believe that child has any need for relationship with other parent
• Portrays other parent as dangerous, may inconsistently act fearful of other parent in front of child
• Exaggerates negative attributes of other parent, and omits anything positive
• Delusional false statements repeated to child; distorts history and other parent's participation in the child's life; claims other parent has totally changed since separation
• Projection of own thoughts, feelings and behaviours onto the other parent
• Does not correct child's rude, defiant and/or omnipotent behaviour directed towards the other parent, but would never permit child to do this with others
• Convinced of harm, when there is no evidence
• False or fabricated allegations of sexual, physical and/or emotional abuse
• Denigrates and exaggerates flaws of rejected parent to child
• Extreme lack of courtesy to rejected parent
• Relocation for minor reasons and with little concern for effects on child

[171] The Respondent Mother testified that she saw no benefit to maintaining a relationship between the father and the children. She was not willing to participate in psychological testing to see if he could parent or if she was exerting influence over the children even if the Applicant Father paid for the therapy. She testified that she believed the Applicant Father was not capable of a heartfelt apology.

[172] The evidence supports a finding that the children have been alienated from the Applicant Father because of the conduct of the Respondent Mother. The issue now is to determine whether the conduct of the Applicant Father contributed to the estrangement.

[173] The Applicant Father’s evidence regarding his past parenting was not overwhelming. His factual witnesses on this point were limited in the evidence they offered. Apart from the next-door neighbour, the other witnesses were clients of the Applicant Father who attended his home office only once or twice a year. They did testify that the Applicant Father had a positive relationship with the children during their observations.

[174] On the other hand, the Respondent Mother offered no credible evidence that the Applicant Father’s past parenting was weak. There was some evidence that showed that the Applicant Father did not always exercise good judgment in how he attempted to parent post-separation but I find that he cannot be faulted for trying to assert some degree of parental authority over the children, even though they rejected him. For example, he volunteered to attend on a class trip with B.’s school. When the child asked him to leave because he was embarrassed by his father’s presence, despising him as he did, the Applicant Father refused. I do not accept that a parent should simply cave into every demand of a rebellious teenager. Such conduct would not be good parenting.

[175] Likewise, the Applicant Father corrected N. for falsifying information and attempting to manipulate the access visit to suit her. He sent her an email response to an email she had sent to him and accurately outlined the details of the failed access visit. She also made a false accusation that the Applicant Father had attempted to cause harm to the children by driving away with the doors of the vehicle open. The fact of the matter is that one of the children opened the doors while the vehicle was moving. Even estranged parents cannot be expected to stand by and allow their children to make false allegations against them without responding to set the factual record straight. To do otherwise would have allowed the false narrative to continue and bolster the child’s position.

[176] There is no doubt that the Applicant Father has struggled to successfully communicate with the children for many years. However, I do not find that his conduct played a part in damaging the children. In other words, his conduct did not constitute justified estrangement. Because of the poisoning by the Respondent Mother of the children, they wanted nothing to do with the Applicant Father, but his shortcomings were not the issue. Issues identified by the children (for example his driving, ants and rats in his house, and physical abuse) were not grounded in reality. They were figments planted by the Respondent Mother or created by the children themselves. This is not a hybrid situation. It is a unilateral, deliberate and successful alienation by the Respondent Mother alone.

[177] The alienation had been completed well before the separation. The OCL did not observe undue influence by the Respondent Mother recently because she did not need to continue the influence once alienation was a fait accompli. The evidence outlined earlier of the Respondent Mother’s and children’s demeaning attitude and bitterness toward the Applicant Father for two years prior to separation (not permitting him to eat with the family or watch TV with them) supports this conclusion.

[178] Given my finding of unjustified alienation by the Respondent Mother, I am left with four options as articulated by Dr. Fidler, as the following:

1. Do nothing and leave the child with the alienating parent;

2. Do a custody reversal by placing the child with the rejected parent;

3. Leave the child with the favoured parent and provide therapy; or

4. Provide a transitional placement where the child is placed with a neutral party and therapy is provided so that eventually the child can be placed with the rejected parent.

[179] No evidence was presented to suggest placement with a neutral third-party was an option.

[180] If the child is left with the Respondent Mother, both the Respondent Mother and the child have made it abundantly clear that they have no desire to participate in any type of therapy with a view reconciliation. Neither the Respondent Mother nor the child would likely comply with any order for either therapy and/or attempts at reconciliation. For that matter, I expect the Respondent Mother and child may completely disobey any access order I make.

[181] If the child is left in the custody of the Respondent Mother, alienation of the Applicant Father, which amounts in my view to emotional abuse, will continue. The relationship with the Applicant Father will be permanently severed. Such a result cannot be tolerated. The child’s long-term best interest must be considered.

[182] This leaves but one option. Custody of the child will be reversed. The only way to guard against any ongoing negative influence from the Respondent Mother and to ensure the best possible success of re-establishing the relationship with the Applicant Father is to suspend contact between the child and the Respondent Mother temporarily. On the assumption that the child will desire to re-establish a connection with his mother, I will order that he participate in therapy as a condition to the court considering re-establishing contact with the Respondent Mother upon review of the matter. In order to ensure compliance with this order, police enforcement will be necessary.

[183] For all of these reasons I make the following order:

1. Effective October 30, 2018 at 11:00 a.m., the Applicant Father shall have sole custody of B.. The Applicant Father will make all decisions with respect to B..

2. For a minimum of six months starting October 30, 2018 at 11:00 a.m. and until further order of this court, the Respondent Mother shall have no contact or communication with B..

3. For a minimum of six months starting October 30, 2018 at 11:00 a.m and until further order of this court, the Respondent Mother shall take all steps necessary to ensure V. and N. Malhotra shall have no contact with B..

4. The Applicant Father shall provide weekly electronic written updates to the Respondent Mother regarding B., including pictures once per month.

5. This court will review the custody and access provisions of this order at the end of the six-month term on a date to be fixed by the trial coordinator in consultation with counsel for the parties. However, the date for the review will not be set until the court is satisfied said review is appropriate based upon the reports from the therapists retained as outlined below.

6. The review will take the form of a long motion for 1/2 day. The court will determine if viva voce evidence will be required at the motion upon review of the affidavits and facta filed.

7. Each party shall file an updated affidavit, a factum and books of authorities as follows:

1. The Applicant Father - 21 days prior
2. The Respondent Mother and OCL - 14 days prior
3. The Applicant Father’s reply affidavit - 7 days prior

8. The court will not undertake a review of the custody and access provisions of this order until the Applicant Father and B. take steps to engage and meaningfully participate in supportive reconciliation therapy with either Carol Jane Parker or Marcie Goldhar, because they are familiar with the family, or such other therapist as approved by me via 14B Motion. The Applicant Father and B. shall follow all directions and recommendations made by the therapist including any recommendations regarding limited communication with the Respondent Mother in furtherance of the goals of reconciliation between the Applicant Father and B.. The review of the custody and access provisions herein cannot be undertaken until B. has meaningfully engaged in said therapy.

9. During the six-month period the Applicant Father shall continue individual therapy with his own therapist to assist him in all aspects of parenting.

10. The court will not undertake a review of the custody and access provisions of this order until the Respondent Mother engages and meaningfully participates in therapy to gain insight into her alienating behaviour and work towards supporting reconciliation between the Applicant Father and B..

11. For the purpose of the review, the parties will file reports from all therapists engaged as outlined above. The reports will be filed and sent to my attention by March 1, 2019.

12. The Toronto Police Services, the Ontario Provincial Police and the Royal Canadian Mounted Police and all enforcement officials having jurisdiction in any area where it appears that B. may be and to whose attention the order is brought, shall assist in enforcing the provisions of this order concerning this family. The enforcement officers shall take all such actions as may be required to locate, apprehend and deliver B. to the Applicant Father, including the power of search and entry at any time.

13. If the parties cannot agree upon costs, the parties will file costs submissions no more than five pages in length plus offers to settle and bills of costs, within 21 days for the Applicant Father and within 28 days for the Respondent Mother and the OCL. The Applicant Father may file a reply of no more than two pages within three days of receiving the Respondent Mother and OCL submissions.

The Honourable Mr. Justice P. W. Nicholson

Released: October 30, 2018